The Wisconsin Supreme Court today upheld the 2020 victims’ rights constitutional amendment. In doing so, the court tossed out a standard for assessing constitutional questions in place since 1925 and created a new standard never argued by the parties.
 
The majority decision and two concurrences used more ink on debates about how to interpret the constitution and the place of originalism—a theory of constitutional interpretation aimed at discerning the intent of a provision at the time it was adopted—than on the arguments raised by the parties in the case before it.
 
Justice Brian Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Grassl Bradley. Hagedorn also wrote a concurrence to his own majority opinion. Grassl Bradley wrote a concurring opinion, joined by Ziegler and Roggensack. Justice Rebecca Dallet wrote a concurring opinion, joined by Justice Jill Karofsky.
 
Justice Ann Walsh Bradley dissented.

No justice denied that the victims' rights amendment diminished the rights of an accused under the state constitution. In her dissent, Walsh Bradley expressly noted that it did.
  
The state defendants, who filed the appeal, never raised any question about the applicable legal standard in their briefs or at oral argument. As noted by Walsh Bradley in her concurrence, they confirmed at oral argument that they were not asking the court to overturn any prior decision.

​The precedent at issue was the Supreme Court's 1925 decision in State ex rel. Ekern v. Zimmerman. The parties argued their case in the trial court and appellate briefs under the language of Ekern and another case from 1953.

The Supreme Court never asked the parties to re-brief the appeal to address whether the standard in Ekern should be rejected, what a new test might be, and how the 2020 ballot question fared against the new standard.
 
Nevertheless, the majority threw out the Ekern test as unsupported by the text of the constitution and its original meaning. The constitution requires only that an amendment be “submitted” to the people without “any explicit obligations regarding form or substance,” Hagedorn wrote. “The text simply requires that the people must have the opportunity to ratify or reject a proposed amendment.” He pointed to early ballot questions from 1850s and 1860s that asked voters merely whether they were voting for or against amending the constitution, without any indication of the amendment’s contents at all.
 
The Wisconsin Supreme Court in Ekern had stated that a constitutional amendment question presented to voters “must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” and that the “essential criterion” is “an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise.”
 
After tossing any standard from Ekern, the court adopted its new standard: a ballot question is invalid “only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment.”
 
Telling voters in the question that crime victims and those accused of crime would have rights protected “with equal force,” while the amendment actually provides that crime victims’ rights are protected “no less vigorous(ly)” than an accused’s was not “fundamentally counterfactual,” said the court. WJI had argued that “equal to” and “equal or greater than” were not equivalent.
 
Failing to tell voters that the amendment deleted a sentence of the constitution ensuring that victims’ rights provisions in the constitution or state statutes would not limit any right of an accused, while diverting voters with a phrase indicating that federal constitutional rights were not impacted by the amendment, did not rise to the level of a fundamentally counterfactual question, said the court.
 
“(T)he issue is not whether the amendment was explained, but whether it was ‘submitted’ to the people. Nothing in the constitution requires that all components be presented in the ballot question. The constitution leaves the level of detail required to the Legislature, which may impose more or less requirements on itself,” Hagedorn wrote.
 
The ballot question need not under the constitution present any kind of description of the amendment’s substance to voters at all, he wrote.
 
Grassl Bradley in her concurrence included significant disagreement with Dallet over constitutional interpretation.

She also opined that voters are expected to review in advance and educate themselves about proposed constitutional amendments. “By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves,” she wrote.
 
Dallet and Karofsky would have retained the Ekern test, but found that the ballot question satisfied it.
 
Walsh Bradley would have retained the Ekern test, and she agreed with WJI and the four individual plaintiffs that under Ekern the 2020 ballot question was invalid.
 
She agreed that the provisions of the vicitms’ rights amendment “do, in fact, decrease the rights afforded to criminal defendants,” and remarked on the majority’s failure to recognize it.
 
“From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal defendants in addition to bolstering the rights of crime victims. In my view, the diminution of a defendant’s rights previously protected by law, constitutes an ‘essential’ element of the amendment,” she wrote.
 
Walsh Bradley noted that the Ekern test furthered the aims of democracy: “Making sure that a ballot question includes ‘every essential’ of an amendment ensures that the public is informed and can ‘vote intelligently.’ This is critical to maintaining a democracy.”
 
The majority’s test “risks giving the Legislature carte blanche in crafting ballot questions,” while Ekern provided a safeguard for the public against being misled, she wrote.
 
“(R)ather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied,” she wrote. “In addition to being created by the majority from whole cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern.”
 
Walsh Bradley recognized that the new test would be “news to the parties here, who both argued their positions in terms of the ‘every essential’ framework Ekern sets forth.”

Updated

​The 2020 crime victims’ amendment to the Wisconsin Constitution stands. The Wisconsin Supreme Court has rejected Wisconsin Justice Initiative’s challenge to the amendment.

WJI challenged the amendment, known as "Marsy's Law," on the grounds that the question put to voters for approval on the April 2020 ballot failed to properly inform them of the amendment’s contents and, in fact, misled them about the elimination of state-law rights of those accused of crimes. In addition, WJI argued, more than one ballot question was needed because the amendment had multiple parts, WJI argued.

The Wisconsin Supreme Court disagreed, through a majority decision and multiple concurrences. Justice Brian Hagedorn wrote on behalf of the court. Justice Ann Walsh Bradley dissented. (Details on the decision to follow in a separate blog post.)

Attorney Dennis Grzezinski, representing the plaintiffs, responded to the decision. “The trial court, in a careful and well-reasoned decision, had found the ballot question to be inadequate to inform Wisconsin voters of the contents of the amendment, and we were hopeful that that decision would be affirmed by the Supreme Court,” he said. “WJI and the individual plaintiffs are disappointed by the Supreme Court’s decision.”

WJI and four individual plaintiffs brought the case in December 2019 and won at the trial-court level. In November 2020, Dane County Circuit Court Judge Frank D. Remington declared that the April 2020 ballot question used to pass what is known as “Marsy’s Law” failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject, in violation of constitutional requirements. Remington stayed his decision pending appeal, so the changes went into effect.

Attorney General Josh Kaul appealed Remington’s decision to District III of the Wisconsin Court of Appeals, located in Wausau. Kaul appealed on behalf of himself, the Wisconsin Elections Commission, its chair, and then-Secretary of State Douglas LaFollette.

The case skipped from the Court of Appeals to the Wisconsin Supreme Court on certification by the District III panel of judges. In certifying the appeal, the court of appeals remarked that the case involved “significant questions of state constitutional law, the resolution of which will have a sweeping effect on our criminal justice institutions and those operating within them, including victims, defendants, prosecutors, defense attorneys, law enforcement officials, and our courts.”

The Supreme Court heard oral argument on September 6, 2022, and issued its decision on May 16, 2023.

“WJI agrees with Justice Ann Walsh Bradley's dissent,” said WJI executive director Margo Kirchner. “The Supreme Court has given the Legislature permission to frame and word referendum questions that leave out important information for voters and even mislead them. The Wisconsin Constitution is the foundation of our state’s laws; changes to it should not occur on the basis of insufficient and misleading ballot questions.”

WJI is disappointed with the outcome, but also with how the majority reached it, said Kirchner. The court decided an issue that the parties never argued in the trial court or on appeal. The court threw out the legal standard from a century-old case, which the state defendants did not challenge, and created a new standard. The parties were not asked to re-brief the case under the new standard. 

During the three years the victims' rights amendment has been in effect, it has created significant challenges for criminal courts and their participants, said WJI president Craig Johnson, a criminal defense attorney and another plaintiff in the case.

"Unfortunately, the Court's decision does not fully recognize the chaos and confusion that this amendment has ushered into the day-to-day workings of our criminal courts,” said Johnson. “The amendment is a story of arguably good intentions that produced confusing and unanticipated results.”

​“Further appeals can be expected, as various aspects of Marsy's Law are challenged in trial courts,” said Johnson. “I don't think we've heard the final verdict on Marsy's Law."

In addition to WJI and Johnson, plaintiffs in the case included criminal defense attorney Jerome Buting, attorney Jacqueline Boynton, and former Wisconsin Sen. Fred Risser.

The guts

A circuit court may issue a temporary injunction if four criteria are fulfilled: (1) the movant is likely to suffer irreparable harm if an injunction is not issued, (2) the movant has no other adequate remedy at law, (3) an injunction is necessary to preserve the status quo, and (4) the movant has a reasonable probability of success on the merits. ...

We begin by observing the limited nature of our review and emphasize that this case is not about the efficacy of ivermectin as a treatment for COVID-19. Rather, it is about whether the circuit court erroneously exercised its discretion by issuing the subject temporary injunction.

Gahl raises three arguments in this court in an attempt to demonstrate that the court of appeals erred and that in fact the circuit court had the authority to issue a temporary injunction. First, he contends that the power of attorney statute, Wis. Stat. § 155.30(1), provides authority to issue the subject injunction. Second, Gahl asserts that the circuit court has inherent authority to issue such an injunction. Finally, he advances that the circuit court may issue the injunction in question under a theory of implied contract between Zingsheim and Aurora. Aurora disputes each of these bases.

We need not address in depth any of Gahl's arguments because we do not know on what basis the circuit court issued the injunction. The circuit court cited no law in either its written order or its oral ruling, as Gahl conceded at oral argument before this court. This in itself constitutes an erroneous exercise of discretion. 

                                                                                                         ***

A circuit court erroneously exercises its discretion in the context of a temporary injunction when it "fails to consider and make a record of the factors relevant to its determination." Further, whether the party seeking an injunction has a reasonable probability of success on the merits in part turns on whether the moving party has stated a claim entitling it to relief.

Although the circuit court acknowledged the four factors that must be fulfilled in order for a temporary injunction to be granted, it did not engage in any analysis of those factors. We base our determination here on its lack of analysis of Gahl's reasonable probability of success on the merits. Indeed, from a review of the circuit court's order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance. In other words, we do not know what viable legal claim the circuit court thought Gahl had presented. Without identifying the legal basis it accepted, the circuit court cannot support the conclusion that Gahl has demonstrated a reasonable probability of success on the merits. ...

In exercising its discretion, there are no "magic words" the circuit court must utter or any precise level of specificity that is required. But the record must make clear that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. 

The circuit court heard legal argument and at one point stated that is (sic) "has a significant respect for an individual's right to choose their treatment." However, such a stray reference does not equate to a legal analysis of the probability of success on the merits of Gahl's legal claim. The circuit court did not tie such "respect" to any legal analysis or indicate how it could serve as a basis for the declaratory and injunctive relief Gahl sought.

​We therefore conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. ​

The upshot

​Citation Partners, LLC owns an aircraft which it leases to third parties, the Lessees. As part of the total amount the Lessees pay to lease the aircraft, Citation Partners charges per-flight-hour rates for aircraft repairs and engine maintenance. Those rates correspond to the amount Citation Partners spends on aircraft repairs and engine maintenance. Citation Partners argues that this portion of the lease payment is tax exempt because it is a sale of aircraft parts or maintenance. We disagree. The per-flight-hour charges for aircraft repairs and engine maintenance are taxable because they are part of the total amount of consideration the Lessees pay to lease Citation Partners' aircraft. We therefore affirm the court of appeals' decision. 

Background

​Citation Partners owns an aircraft that it leases to the Lessees. The Lessees signed a contract called the Aircraft Dry Lease, defining the responsibilities they and Citation Partners have with regard to the lease of the aircraft. The Dry Lease requires the Lessees to notify Citation Partners if the aircraft needs repairs or maintenance. If so, Citation Partners is responsible for scheduling and paying for all repairs or maintenance. It does not perform any of the repairs or maintenance itself. ​

In addition to the Dry Lease, the Lessees entered into a Side Agreement with Citation Partners that sets forth the financial terms for the lease of the aircraft. The Side Agreement includes costs-per-flight-hour that Citation Partners charges the Lessees for aircraft repairs and engine maintenance. Those charges are substantially similar to the amount Citation Partners spends when it purchases aircraft repairs and engine maintenance directly from vendors. 

In 2013, the Legislature passed Wisconsin Act 185, which expanded an existing sales tax exemption to include the sale of aircraft parts or maintenance. After the Act took effect, Citation Partners stopped collecting sales tax on the amounts it charged Lessees for aircraft repairs and engine maintenance. In 2017, the Wisconsin Department of Revenue notified Citation Partners that unpaid sales taxes were due on those amounts. 

Citation Partners appealed and won in Dodge County Circuit Court before Circuit Judge Martin J. De Vries, but the Court of Appeals reversed that decision, meaning Citation Partners was on the hook for the taxes again.

The guts
​
State statutes together state that the total amount of consideration paid for a lease – the "sales price" – is taxable, with no deduction for the lessor's costs.

                                                                                                         ***

The sum of those (per-hour flight) costs – including for aircraft repair and engine maintenance – is thus "the total amount of consideration . . . for which [the aircraft is] . . . leased" and is therefore taxable. If there were any doubt remaining as to whether Citation Partners' costs for aircraft repairs and engine maintenance can be deducted from the sales price, § 77.51(15b)(a) confirms that the "total amount of consideration" must be calculated "without any deduction" for Citation Partners' costs. 

Citation Partners argues that the payments are not taxable because they are not consideration at all. That is because, in its view, Citation Partners simply hands the money the Lessees pay for repairs and maintenance over to the vendors that provide those services. But consideration is "any act of the plaintiff from which the defendant . . . derives a benefit or advantage." And Citation Partners clearly benefits from these payments by passing along to its Lessees the costs of maintaining its aircraft. For that reason, these payments are – by definition – consideration. Additionally, accepting Citation Partners' argument that it receives no consideration from the Lessees' payments for aircraft repairs and engine maintenance simply because that payment corresponds to anticipated repair costs would render part of (the statute) meaningless. After all, if Citation Partners is right, it is not clear what (the law) means when it says that the "sales price" – the "total amount of consideration" – is calculated "without any deduction" for Citation Partners' costs. 

Citation Partners claims that the costs-per-flight-hour that it receives for aircraft parts and engine maintenance are nevertheless tax exempt. It points to two statutory exemptions related to aircraft: Wis. Stat. § 77.54(5)(a)3., which exempts the sale of "parts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10., which exempts the sale of "repair, service, . . . and maintenance of any aircraft or aircraft parts." Citation Partners argues that since the plain language of both exemptions covers the costs of aircraft repairs and engine maintenance, then "the reimbursement payments that Citation Partners receives from the Lessees are exempt from sales tax."  

We disagree because neither of these statutory exemptions applies to the payments Citation Partners receives from the Lessees. Simply put, Citation Partners does not sell its Lessees "parts used to modify or repair aircraft," or "repair, service, . . . and maintenance of any aircraft." It leases its aircraft to the Lessees. And as explained previously, the statutes already make clear that the total amount of consideration paid on an aircraft lease is taxable without any deduction for the Lessor's costs. When Citation Partners (or the Lessees for that matter) buy aircraft repairs or engine maintenance directly, those transactions are tax-exempt. But when Citation Partners passes those costs along to its customers as part of the total amount of consideration in a lease, that transaction is taxable. 

                                                                                                         ***

Citation Partners tries to circumvent the plain language of the statutes by arguing that it is the Lessees' agent when it purchases aircraft repairs and engine maintenance. And for that reason, the per-flight-hour reimbursements for aircraft repairs and engine maintenance are akin to the Lessees purchasing those repairs and maintenance directly.

An agency relationship is a "fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control." ...

Citation Partners relies on the lease documents as "provid[ing] the framework for the agency relationship." It points out that the Dry Lease makes the Lessees responsible for "inspect[ing] the Aircraft" and notifying Citation Partners if "any repair or maintenance should be completed." Additionally, the Dry Lease contains an indemnification provision under which the Lessees are "ultimately responsible for all obligations, expenses and disbursements asserted against Citation Partners arising out of the operation of the Aircraft."  

Rather than prove an agency relationship exists, the lease documents reveal the opposite. The Dry Lease states that Citation Partners – not the Lessees – "shall schedule and pay for all repairs and maintenance." And that decision is not "directed" by the Lessees just because they must notify Citation Partners of necessary maintenance upon inspection of the aircraft. Rather, the Lessees' inspection obligation is limited to confirming that the aircraft is flightworthy before using it. Likewise, under the Dry Lease, the Lessees have only limited authority to purchase repairs and maintenance up to $5,000, and are reimbursed by Citation Partners if they do so. Additionally, although the parties entered into a new Side Agreement in 2015 which states that the Lessees are "responsible for fixed and indirect operating expenses and charges attributable to the operation and maintenance of the Aircraft," including "[s]cheduled and unscheduled maintenance," nothing in that Agreement or the Dry Lease suggests that the Lessees control Citation Partners' aircraft-maintenance activities. 

                                                                                                         ***
​
​Wisconsin imposes a five percent sales tax on the sale or lease of tangible personal property like Citation Partners' aircraft. The tax applies to the total "sales price" of the lease unless there is an applicable exemption. Two such exemptions exist for the sale of aircraft parts and maintenance, but neither apply to the Lessees' payments to Citation Partners for aircraft repairs and engine maintenance. Accordingly, we hold that the total amount of consideration the Lessees pay to lease Citation Partners' aircraft is taxable, and affirm the court of appeals' decision.

Dissent 

The majority opinion never interprets §§ 77.52(2)(a)10. or 77.54(5)(a)3, (see Dallet's opinion above for her reasoning rejecting the application of these exemptions) which address aircraft repairs and aircraft parts. It skips over the plain meaning of those two statutes, and instead, it interprets Wis. Stat. §§ 77.51(15b)(a) and 77.52(1)(a), neither of which contains the word, "aircraft," nor does either statute mention aircraft parts or aircraft maintenance. ...

The plain meaning of those statutes grants Citation Partners the sales tax exemption it seeks. Because the majority opinion chooses to follow the error-strewn path of the Tax Appeals Commission (TAC), which contravenes the clear statutory direction to exempt the sales price of aircraft parts and aircraft maintenance from state sales taxes, I respectfully dissent. 

                                                                                                         ***
​
Section 77.52(2)(a)10. is broadly stated. The statute applies to "any aircraft or aircraft parts." (Emphasis added.) There is no statutory limitation on the statute's use that refers to whether the "selling, licensing, performing or furnishing" of aircraft parts or services are set out in a written agreement or performed without a written agreement. There is no limitation on whether the person responsible for that financial obligation pays the vendor directly or pays another who has paid the vendor on that person's behalf. 

                                                                                                         ***

In this matter, we are concerned about how TAC's factual findings affected its decision not to apply Wis. Stat. §§ 77.52(2)(a)10. and 77.54(5)(a)3. to the transaction under review here. As explained below, I conclude that the TAC's material factual findings that underlie its legal conclusion are not supported by substantial evidence, and therefore, TAC's decision must be set aside.

                                                                                                         ***

(U)nder the Side Agreement, the lessees are obligated to pay for repairs and maintenance of the aircraft. Therefore, Citation Partners is being reimbursed under the Side Agreement for obligations of the lessees that it paid on their behalves. 

In addition to its misreading of record exhibits, the TAC ignores the Stipulation of Facts that the parties jointly submitted. That stipulation in paragraph 3 states, "the Side Agreements and invoices to lessees expressly provided for dollar for dollar reimbursement by each of the lessees of the Aircraft of both engine maintenance cost and Aircraft maintenance cost." Notwithstanding that factual stipulation the TAC says, "That starting point, reimbursement, presupposes that each Lessee was obligated to pay for repair and maintenance such that the Lessor, in effect, paid the expenses on behalf of the Lessees. That is not what happens under these Agreements." However, reimbursement from the lessees for expenses that Citation Partners paid for the lessees is exactly what the parties represented in the Factual Stipulation that they provided to TAC, as well as under other record exhibits.

Accordingly, TAC's material factual findings are not supported by substantial evidence, and they must be set aside based on documents in the record and the Stipulation of Facts that the parties provided to the TAC. 

TAC's legal conclusions are grounded in its erroneous factual findings. As with the majority opinion, the TAC does not interpret the statutes that are at issue here. Instead, it interprets Wis. Stat. § 77.51(15b)(a), which does not mention aircraft maintenance, aircraft parts or aircraft in any regard. Nevertheless, TAC concludes that "expenditures for those repairs and maintenance parts and services are not separately exempt when incorporated into the lease payments of a subsequent lease of the entire Aircraft."

Rather, it is Wis. Stat. § 77.54(5)(a)3. that creates an "exemption" for the "sales price" of "[p]arts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10. that sets sales of "repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection and maintenance of any aircraft or aircraft parts" outside the scope of state sales taxes. Nothing in either statute changes those exemptions when an aircraft is leased. Stated otherwise, there is nothing in either statute that limits its use when obligations to pay for aircraft maintenance and parts are incurred pursuant to written documents rather than directly to the vendors.

                                                                                                         ***

Rather, it is Wis. Stat. § 77.54(5)(a)3. that creates an "exemption" for the "sales price" of "[p]arts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10. that sets sales of "repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection and maintenance of any aircraft or aircraft parts" outside the scope of state sales taxes. Nothing in either statute changes those exemptions when an aircraft is leased. Stated otherwise, there is nothing in either statute that limits its use when obligations to pay for aircraft maintenance and parts are incurred pursuant to written documents rather than directly to the vendors.

By Gretchen Schuldt

A case involving the odor of marijuana that could have a significant impact on when police can search people and their vehicles will be heard this month by the state Supreme Court.

At issue is whether the smell alone is a legitimate basis for a police search when the smells of illegal cannabis and legal CBD are indistinguishable.

Such odor-based searches are fine as long as the smell can be linked to a person, the state argued in its brief seeking to overturn a Court of Appeals decision that found otherwise. Besides, "unmistakable" does not necessarily mean "can't be mistaken," the state said.  

But lawyers for Quaheem O. Moore contend that those smell-based searches are not fine. "A well-established probable cause standard, even as it relates to the odor of THC, should not be lowered," they wrote in a brief. Moore is represented by Joshua Hargrove, Tracey A. Wood, and Teuta Jenozi.

The case is scheduled for argument April 19.

Moore's trip to the Supreme Court started with a traffic stop. Moore was driving a rented car he borrowed from his brother.

The officers said they could smell raw marijuana emanating from the car, but acknowledged after Moore got out of the car that they could not smell it on him personally. The officers also said they had seen Moore throw a liquid from the car while he was driving, which he denied. The liquid later was determined not to be alcohol and neither Moore nor the car smelled of booze.

Moore told officers that a vape pipe he was carrying, discovered during a pat-down for weapons, was for CBD, which is legal in Wisconsin. The officers told him they were going to search him more thoroughly based on the raw marijuana smell. They found cocaine and fentanyl in two baggies in a hidden pocket behind the zipper of Moore's pants.

He was charged with intent to deliver drugs and possession with intent to deliver cocaine, both as a repeater. His lawyer successfully sought to suppress the evidence in circuit court and the Court of Appeals upheld that decision. The officers did not, given the totality of the circumstances, including the odor, have probable cause to search Moore, the court said.

A 1999 SCOW ruling in State v. Secrist is key to Moore's case. The court, in upholding a search, said that "the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons." 

At the time, all cannabis products were illegal. Some are legal now, however. 

In the Moore case, Assistant Attorney General Jacob J. Wittwer argued in a brief, the appeals court's interpretation of Secrist is unreasonable because it "establishes a heightened standard of proof for search and arrest based on the odor of marijuana that is significantly more demanding than probable cause."

In addition, he said, "the Court of Appeals’ interpretation of the word 'unmistakable' is inconsistent with a commonly-accepted meaning of the term that is in full agreement with the Secrist decision." 

While some dictionaries define "unmistakable" as meaning something that cannot be mistaken for something else, others are not so restrictive, Wittwer wrote. Other dictionaries define it as "very distinctive," "very easy to recognize," and "not likely to be confused with something else." 

The Supreme Court should "reaffirm its holding in Secrist that the odor of marijuana may provide probable cause to arrest if it is unmistakable — that is, if it has marijuana’s very distinctive and recognizable smell such that it is unlikely to be something else — and is linked to the person or persons."

​The smell also was linked to Moore because he was driving the car and was its only occupant, Wittwer said.

In contrast, Moore's attorneys argued that "By its definition, an unmistakable odor may not be mistaken for that of any other substance. ... The state cites to no authority for the assertion that the Court should use or has ever used a word while intending to give force to a tertiary or less common understanding of the word used."

The record is "devoid" of evidence linking Moore to the smell, they wrote. The officers could not smell cannabis on Moore, and it wasn't his car.